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by Buzz Daly
March 10, 2002
There are those who think the world will end not with a bang, but with a whimper. Without trying to put too melodramatic of a spin on it, there is a grave possibility that the Jay Cohen court case could end in a similar fashion, aborted prematurely.
Recently Jay's legal team - bulked up with the addition of a second high profile law firm, Washington-based Jenner & Block, LLC - filed a petition for a writ of certiorari. Essentially, this is a petition for the Supreme Court to hear this case. It seeks to overturn a judgment by the U.S. Court of Appeals for the Second Circuit, which upheld Cohen's conviction in a New York federal court on one count of conspiracy and seven counts of violating the Interstate Wire Act of 1961.
We did a little sniffing around to determine the status of the case, and our sources tell us that the legal machinations are so convoluted, they could have been conceived by Chekhov.
The government had an opportunity to respond to Jay's petition, but chose not to. This, it turns out, is standard policy. Because 97 percent of such petitions are denied, the government generally doesn't respond unless it is advised that the court is considering hearing the case. The government would then be ordered to respond.
At this point, Cohen's counsel is not counting on the petition being granted. Rather, they are hoping that the government is indeed asked for a response, for which it would have 30 days to file. Cohen's legal team would have 10 days in which to file their reply. The court would then have a month to look at everything and decide if it would hear the case.
However, there is a real likelihood that the above scenario will never have an opportunity to play out. According to our sources, instead of all nine Supreme Court Justices reviewing Jay's petition via their law clerks, a truncated version of this practice is now in effect.
Each of the nine Justices has established a "cert pool" in which their 24 law clerks are bundled together in a group, and only one of them reads the petition. After reviewing the petition, the law clerk writes a memo that goes to eight of the Justices with a recommendation to either grant or deny the petition, or call for a government response.
Justice John Paul Stevens insists that every petition be read by at least one of his clerks, and he does not participate in the cert pool. It takes only one Justice to call for a government response. But eight of them will be influenced by the judgment of a single law clerk, and Justice Stevens will react to his law clerk's recommendation.
In essence, Jay's life is hanging on the judgment of his petition by two Supreme Court law clerks. If the Cert Pool clerk says "deny", none of the eight judges will call for a response. If it weren't for the Cert Pool, nine clerks would be reading the petition instead of just two.
The deadline for a decision on the petition is March 25. Theoretically the case, which started in 1998, could be resolved before the end of this month.
We don't wish to paint too dark of a picture. This is potentially a landmark case, and it is not asking or expecting too much for at least one of the law clerks who reads the petition to realize the significance of having the issues heard by the Supreme Court.
Additionally, both of Cohen's attorneys at his new law firm are former law clerks of Justice Stevens. Moreover, Jenner & Block is the firm that handled the ACLU vs. Reno Internet pornography case, in which they bested the government all the way up to the S.C., where a 9-0 ruling in their favor was rendered.
In seeking the Supreme Court to hear this case, Cohen's petition has two basic tenets:
* It clearly and persuasively demonstrates conflicts between circuit courts and states.
* It illustrates the importance of the case's core issue, and the impact the second circuit court's intellectually dishonest opinion has had on both the offshore and off-track betting industries.
Other legal heavyweights beyond those on Cohen's team believe the Second Circuit Appellate's opinion was erroneous. The appeals court stands accused of avoiding the hard issues and blatantly ignoring applicable legal precedent which would have provided ample grounds to overturn the case.
If the government is forced to respond, it will take four of the Justices to vote in favor of certiorari for the case to be heard. Should this happen, a simple majority is required to overturn Jay's conviction.
There is one other long-shot scenario. If the Court takes the case and determines the applicable law is hazy, it could be thrown out on what is called the Rule of Lenity. That rule says any law interpretation that is gray goes in favor of the defendant, so all the preceding legal action would be reversed.
Many people close to this case felt that the fix was in regarding action by the lower courts. Pardon us if our bias is showing, but we are among them. On the radio show we do with Kelso Sturgeon, the veteran handicapper made an interesting observation.
He said that if the case is heard, and even if the decision goes in Cohen's favor, it might not necessarily be a victory for the offshore industry. He noted that the decision could be broad with far-reaching implications, or narrow and with relevance just to the case at hand.
We don't wish to sound like we're playing hearts and flowers, but Jay Cohen is one of a vanishing breed - a stand-up guy. When the charges against him were first issued, Jay could have taken the advice of his fellow bookmakers and simply opted for the life of a fugitive, albeit one who was very well off financially.
But as a then solid establishmentarian and believer in truth, justice and the American way, he didn't falter. He hopped a plane and flew to New York to answer and fight the charges, believing that righteousness, observance of the law and common sense would carry the day.
After four years of being body slammed by the system, his idealistic ideology has vanished. But his fighting spirit is unbroken and unbowed.
As an active web surfer who visits many posting forums, Jay is well aware that not everyone is in his corner. He shrugs off the petty jealousies of those who misstate his motivation. But he is disappointed that more in the industry haven't given support.
Not financial support, he emphasized, but simply moral support. He could have pled out, closed the business, paid a fine and gotten on with his life. Instead, he chose to fight the government on an issue that has put him between a rock and a hard place.
We can't make an unbiased call on Cohen's chances for winning at the Supreme Court level. For that we'd have to get an opinion from our favorite bookmaker, Jimmy Vaccaro.
If you'd like to read the full transcript of Jay Cohen's Supreme Court petition, click here: Jay Cohen's Petition to the Supreme Court.
Good News for Punters
The old marketing phrase, "brought to you by popular demand", is the impetus behind the launching of a post-up sportsbook by a shop that has routinely turned down such business over the years.
Grande, which has been a highly respected credit store since 1992, is putting the finishing touches on an expansion program that will make it available to post-up bettors.
Skippy, the guy behind Grande, is held in high esteem by both his customers and his peers in the bookmaking community. His credo is pretty basic: book all comers, offer fair vig and pay promptly. B.W., among others, bets with Grande.
Of course, Skippy is a sophisticated professional bookmaker with extraordinary instincts. When the post-up side of his business is up and running, it should be a highly desirable out for many bettors.
We asked Skippy what prompted his foray into the post-up business, which he had heretofore avoided. "I got tired of turning away business. We're ready to take action from everybody," he stated.
Grande expects to be open for business early in the baseball season. Oh, yeah, the book will offer a true dime line, along with a lot of other goodies.
One more point: given the strength of Grande, it will not seek customers by offering outrageous signup incentives.
Thanks for the Heds Up
With all the mean-spirited nonsense that goes on over the Internet, we were surprised and gratified to receive numerous sincere warnings about dealing with Score Sportsbook, after mentioning in our last column that we were considering consulting for the shop.
Among the well-intentioned heds up we received were emails from Jay Cohen and Jim of OSGA. They advised that the principals at Score had been involved with shady books that did not pay customers, and simply shut down.
We're getting Score's side and will have a report in our next column. But initial findings indicate that they are taking a bum rap by being involved, through no fault of their own, with professional scammers.
Score appears to have a clean record, and the two men who run it would seem to have stepped into a hornet's nest in one of their previous endeavors, which was selling franchises in sportsbooks and casinos.
We expect to have it all sorted out soon and will try to explain how and why the situation happened.
March 10, 2002
There are those who think the world will end not with a bang, but with a whimper. Without trying to put too melodramatic of a spin on it, there is a grave possibility that the Jay Cohen court case could end in a similar fashion, aborted prematurely.
Recently Jay's legal team - bulked up with the addition of a second high profile law firm, Washington-based Jenner & Block, LLC - filed a petition for a writ of certiorari. Essentially, this is a petition for the Supreme Court to hear this case. It seeks to overturn a judgment by the U.S. Court of Appeals for the Second Circuit, which upheld Cohen's conviction in a New York federal court on one count of conspiracy and seven counts of violating the Interstate Wire Act of 1961.
We did a little sniffing around to determine the status of the case, and our sources tell us that the legal machinations are so convoluted, they could have been conceived by Chekhov.
The government had an opportunity to respond to Jay's petition, but chose not to. This, it turns out, is standard policy. Because 97 percent of such petitions are denied, the government generally doesn't respond unless it is advised that the court is considering hearing the case. The government would then be ordered to respond.
At this point, Cohen's counsel is not counting on the petition being granted. Rather, they are hoping that the government is indeed asked for a response, for which it would have 30 days to file. Cohen's legal team would have 10 days in which to file their reply. The court would then have a month to look at everything and decide if it would hear the case.
However, there is a real likelihood that the above scenario will never have an opportunity to play out. According to our sources, instead of all nine Supreme Court Justices reviewing Jay's petition via their law clerks, a truncated version of this practice is now in effect.
Each of the nine Justices has established a "cert pool" in which their 24 law clerks are bundled together in a group, and only one of them reads the petition. After reviewing the petition, the law clerk writes a memo that goes to eight of the Justices with a recommendation to either grant or deny the petition, or call for a government response.
Justice John Paul Stevens insists that every petition be read by at least one of his clerks, and he does not participate in the cert pool. It takes only one Justice to call for a government response. But eight of them will be influenced by the judgment of a single law clerk, and Justice Stevens will react to his law clerk's recommendation.
In essence, Jay's life is hanging on the judgment of his petition by two Supreme Court law clerks. If the Cert Pool clerk says "deny", none of the eight judges will call for a response. If it weren't for the Cert Pool, nine clerks would be reading the petition instead of just two.
The deadline for a decision on the petition is March 25. Theoretically the case, which started in 1998, could be resolved before the end of this month.
We don't wish to paint too dark of a picture. This is potentially a landmark case, and it is not asking or expecting too much for at least one of the law clerks who reads the petition to realize the significance of having the issues heard by the Supreme Court.
Additionally, both of Cohen's attorneys at his new law firm are former law clerks of Justice Stevens. Moreover, Jenner & Block is the firm that handled the ACLU vs. Reno Internet pornography case, in which they bested the government all the way up to the S.C., where a 9-0 ruling in their favor was rendered.
In seeking the Supreme Court to hear this case, Cohen's petition has two basic tenets:
* It clearly and persuasively demonstrates conflicts between circuit courts and states.
* It illustrates the importance of the case's core issue, and the impact the second circuit court's intellectually dishonest opinion has had on both the offshore and off-track betting industries.
Other legal heavyweights beyond those on Cohen's team believe the Second Circuit Appellate's opinion was erroneous. The appeals court stands accused of avoiding the hard issues and blatantly ignoring applicable legal precedent which would have provided ample grounds to overturn the case.
If the government is forced to respond, it will take four of the Justices to vote in favor of certiorari for the case to be heard. Should this happen, a simple majority is required to overturn Jay's conviction.
There is one other long-shot scenario. If the Court takes the case and determines the applicable law is hazy, it could be thrown out on what is called the Rule of Lenity. That rule says any law interpretation that is gray goes in favor of the defendant, so all the preceding legal action would be reversed.
Many people close to this case felt that the fix was in regarding action by the lower courts. Pardon us if our bias is showing, but we are among them. On the radio show we do with Kelso Sturgeon, the veteran handicapper made an interesting observation.
He said that if the case is heard, and even if the decision goes in Cohen's favor, it might not necessarily be a victory for the offshore industry. He noted that the decision could be broad with far-reaching implications, or narrow and with relevance just to the case at hand.
We don't wish to sound like we're playing hearts and flowers, but Jay Cohen is one of a vanishing breed - a stand-up guy. When the charges against him were first issued, Jay could have taken the advice of his fellow bookmakers and simply opted for the life of a fugitive, albeit one who was very well off financially.
But as a then solid establishmentarian and believer in truth, justice and the American way, he didn't falter. He hopped a plane and flew to New York to answer and fight the charges, believing that righteousness, observance of the law and common sense would carry the day.
After four years of being body slammed by the system, his idealistic ideology has vanished. But his fighting spirit is unbroken and unbowed.
As an active web surfer who visits many posting forums, Jay is well aware that not everyone is in his corner. He shrugs off the petty jealousies of those who misstate his motivation. But he is disappointed that more in the industry haven't given support.
Not financial support, he emphasized, but simply moral support. He could have pled out, closed the business, paid a fine and gotten on with his life. Instead, he chose to fight the government on an issue that has put him between a rock and a hard place.
We can't make an unbiased call on Cohen's chances for winning at the Supreme Court level. For that we'd have to get an opinion from our favorite bookmaker, Jimmy Vaccaro.
If you'd like to read the full transcript of Jay Cohen's Supreme Court petition, click here: Jay Cohen's Petition to the Supreme Court.
Good News for Punters
The old marketing phrase, "brought to you by popular demand", is the impetus behind the launching of a post-up sportsbook by a shop that has routinely turned down such business over the years.
Grande, which has been a highly respected credit store since 1992, is putting the finishing touches on an expansion program that will make it available to post-up bettors.
Skippy, the guy behind Grande, is held in high esteem by both his customers and his peers in the bookmaking community. His credo is pretty basic: book all comers, offer fair vig and pay promptly. B.W., among others, bets with Grande.
Of course, Skippy is a sophisticated professional bookmaker with extraordinary instincts. When the post-up side of his business is up and running, it should be a highly desirable out for many bettors.
We asked Skippy what prompted his foray into the post-up business, which he had heretofore avoided. "I got tired of turning away business. We're ready to take action from everybody," he stated.
Grande expects to be open for business early in the baseball season. Oh, yeah, the book will offer a true dime line, along with a lot of other goodies.
One more point: given the strength of Grande, it will not seek customers by offering outrageous signup incentives.
Thanks for the Heds Up
With all the mean-spirited nonsense that goes on over the Internet, we were surprised and gratified to receive numerous sincere warnings about dealing with Score Sportsbook, after mentioning in our last column that we were considering consulting for the shop.
Among the well-intentioned heds up we received were emails from Jay Cohen and Jim of OSGA. They advised that the principals at Score had been involved with shady books that did not pay customers, and simply shut down.
We're getting Score's side and will have a report in our next column. But initial findings indicate that they are taking a bum rap by being involved, through no fault of their own, with professional scammers.
Score appears to have a clean record, and the two men who run it would seem to have stepped into a hornet's nest in one of their previous endeavors, which was selling franchises in sportsbooks and casinos.
We expect to have it all sorted out soon and will try to explain how and why the situation happened.